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2004 DIGILAW 127 (JK)

State Forest Corp. , J&K v. Ab. Hamid Thoker

2004-04-30

SYED BASHIR-UD-DIN

body2004
Against Appellants suit for declaration and injunction filed by respondents is pending on the file of Addl. District Judge, Srinagar. As Contractors under State Forest Corporation, the plaintiffs challenged the Management decision and Circulars prohibiting payment of in built charges in respect of works executed after 17.1.2002 and on pleas taken thereto have prayed for declaring the Management decision and the Circulars and other orders on the subject as null and void besides praying for payment in respect of allotted and completed works subject of the suit. Plaintiff-applicants also moved an application for interim relief regarding payments for the works completed after 17.01.2001 which also include additional allotted works in RB1, RB4, RB16, and RB-17. The trial court after inviting objections and after hearing the parties allowed the application on 27.6.2002 in terms as under:- "As such application is granted i.e payments shall be made to the applicants for the work done up to 17.01.2001 including additional works done in the compartment No. RB-1, RB-4, RB-16 and RB-17 on account of in-built charges, transportation, extraction and mahaning in terms of management decision No. 1 of 2002 dated 07.01-2002 and the letter bearing No. 35-37/Stw/Bij. Dated 10.04.2002 and letter bearing No. 163-164/GM/RD/SFC/CJ dated 26.04.2002, which should have been done by non-applicant No. 4 otherwise also by respecting the management decision which is catagoric and un-equivocal to the effect that no in-built charges shall be payable for the works done after 17.01.2001. However, plaintiffs/petitioners complained of non implementation of the order and moved a contempt petition before the trial court. Managing Director SFC(Respondent No. 1) in terms of the memo filed has not objected to the compliance of the order and instead stated before the court that the worked out amount has been released to the SFC and is only to be disbursed to the Contractors/mates. Respondent No. 3 Divisional Manager has also stated that steps have been taken for implementation of the order, but contemnor No. 2 Financial Advisor to SFC contended that the budget amount could have been allotted for utilization against the works only after Divisional Manager/General Manager concerned recommended the requisition n of the funds through Divisional Manager for release. However, in this case, no requisition was preferred. However, in this case, no requisition was preferred. The court again by order dated 10.2.2003 taking note of in-management differences directed respondents to sit together and square out the issues complete required formalities and release requisite funds in accordance with the management decision. Pursuant to this direction, the Managing Director submitted report to the court. However, the Financial Advisor Janak Singh objected to the calculation and details. Thereafter as if not enough, the court by order dated 7.4.2003 directed Managing Director SFC to constitute Committee for verification of actual calculations and due payable amount. The Managing Director following the directions constituted a committee which committee has filed the report through Managing Director. In respect of this report, trial court by order dated 27.05.2003 observed and passed further direction as under:- "Un-disputed amounts in accordance with the management decision are not being released perhaps due to the internal crisis or due to the disliking by R.M. Mr.Marazi and Mr. Janak Singh. Report of the committee is on the file. It is Mr.Marazi and Janak Singh who shall adhere to the norms and shall thereafter forthwith comply the management decision and the verified calculation be given effect. They shall report compliance within week time and shall appear in person in this Court failing which action as warranted under law i.e under Order 39 Rule 2.C.P.C shall be taken. Let the matter come up accordingly after weeks time i.e 3.6.2003." Pursuant to court orders, part payment has been released to applicants/plaintiffs and with regard to objections taken by Ghulam Hassan Marazi and Janak Singh, the court observed that Management decision of SFC indicated in detail in comprehensive report shall prevail as against individual report regarding quantifications of G.H.Marazi. Management decision shall be implemented and consequently worked out payments to be released to the applicant/ plaintiffs. After the plaintiffs/petitioners pursuant to the earlier direction dated 27.6.2002 have executed and furnished undertaking before the trial court, that in the event of circumstances of the case at any stage warranting reimbursement of the payment made, the plaintiffs/applicants shall reimburse the amount. By this order dated 23.9.2003, not only the contempt petition has been dismissed,but even three other applications pertaining to calculations and initiation of contempt have also been dismissed. 2. By this order dated 23.9.2003, not only the contempt petition has been dismissed,but even three other applications pertaining to calculations and initiation of contempt have also been dismissed. 2. Against this order of September 23,2003, this Appeal is filed on the ground that the trial court has brushed aside the contra report of Mr.Marazi, Divisional Manager, while accepting the report and decision of the management through Managing Director of SFC, on untenable grounds. Directions could not be made in contempt proceedings so as to enlarge the ambit of contempt proceedings to include fresh directions. The trial court could not have given directions as the dispute was referable to the Arbitrator under the arbitral agreement between the parties. 3. Heard. Record perused. 4. Admittedly this interim matter and the executable directions thereto are covered by interim order dated 27.6.2002 (Annexure-A1). The operative part of the order would show that the respondents are under directions to make payments for the work done by plaintiffs upto 17.1.2001 on account of in-built charges, transportation, extraction and mahanning in terms of Management decision and the letters on the subject. The cut of date is 07.01.2001 in respect of in-built charges which are not to be allowed to the contractors after this date in terms of the letters and the management decision. This direction is on record and the case admitted by the SFC management. After the respondents failed to comply with the direction and then the Financial Advisor and the Regional Manager went against the decision of the management, headed by Managing Director and Divisional Manager and raised dispute as to the actual calculations, the court again in the larger interest of justice directed respondents to sit together and complete the formalities and ensure release of funds pursuant to the Management decision. The Managing Director again submitted the report in detail alongwith the calculations, but again the Financial Advisor and the Regional Manager raised objections. The trial court after considering the matter and upon detailed hearing directed that undisputed amount in accordance with the Management decision be released to plaintiffs/petitioners while asking the Financial Advisor and the Regional Manager to stict to norms and inviting their individual reports. The trial court after considering the matter and upon detailed hearing directed that undisputed amount in accordance with the Management decision be released to plaintiffs/petitioners while asking the Financial Advisor and the Regional Manager to stict to norms and inviting their individual reports. After examining the ambit of the controversy raised and on consideration, the trial court found that the management decision of the State Forest Corporation and the report of the expert Committee constituted by the Managing Director SFC which was in accord with the management decision be given effect to and the payments be worked out accordingly for release to applicants. 5. The contention that acccepting the decision of the management through Managing Director in preference to the report of the Regional Manager (Mr. Marazi) who is stated to have been compulsorily retired (by now) from service is for reasons detailed out in the order. The decision of the management is based on the expert report. The objection by lone official cannot upset the decision of the management of the SFC headed by the Managing Director. The trial court has recorded detailed reasons for its interim direction which do not appear vitiated. The exercise of discretion is not shown to be arbitrary or unreasoned. It is fairly exercised within parameters of law.This apart, motive of the Regional Manager(Mr.Marazi) to oppose the Managing Director and the management decision of the SFC, are alleged to be oblique However, it is manifest that opinion or contra report of Mr. Marazi can-not hold the field in the face of expert report and the management decision on one and the only question of calculations and due payments. By the impugned order it is not seen that the scope of contempt is enlarged by issuance of the direction under challenge, in as-much-as, the interim direction which is subsequently amplified and clarified and given effect to by the trial court, is issued on 27.6.2002 in main suit on an interim application.It is interesting to note that the basic interim direction dated 27.6.2002 in the main suit, of which the impugned direction dated 24.9.2003 is an off shoot in the nature of more or less a clarificatory direction is not under challenge in the appeal. 6. 6. The question that the matter being referable to the Arbitration, the trial court could not have issued the impugned direction, is covered by order dated 27.6.2002, wherein, this objection has been brushed aside after taking note of provisions of Arbitration Act and the law laid down in AIR 1999 SC: 565. Again this direction is not challenged in the Appeal. What the appellants have tried to make out is that two views are possible in the matter and the appellate court is urged to uphold the view that favours the appellants. However, this preposition is fallacious and cannot be accepted. 7. In the context of interference at appellate stage with the exercise of discretion by lower court, in Babu Ram Ashok Kumar & Anr v. Antaro, Zila Parishad (AIR 1964 Allahabad :534)(FB), it is observed:- "(9). A Court of appeal would not interfere with the exercise of discretion by the Court below, if the discretion has been exercised in good faith, after giving due weight to relevant matters and without being swayed by irrelevant matters. If two views are possible on the question, then also the Court of appeal would not interfere, even though it may exercise discretion differently, was the case to come initially before it. The exercise of discretion should manifestly be wrong." 8. In the matter of interference with discretion exercised by the lower court, the rule is that the Appellate court has to be loath enough to interfere with the exercise of that discretion only because if the Appellate court had dealt with the matter at the trial stage, it may have come to a contrary conclusion. The exercise of discretion cannot be set at naught so long the trial court has exercised discretion reasonably and in a judicial manner. The appellate court is not to substitute its own exercise of discretion for that of the trial court when it appears on record that the discretion exercised by the trial court is fair and reasonable after keeping in view the relevant facts and the rules to be observed for exercise of discretion. The trial court has considered the guide-lines of prima facie case, balance of convenience and prevention of irreparable injury in the context of the suit situation in the light of the material aspects of the case, and contractual duties and liabilities of the parties. The trial court has considered the guide-lines of prima facie case, balance of convenience and prevention of irreparable injury in the context of the suit situation in the light of the material aspects of the case, and contractual duties and liabilities of the parties. The powers of appellate court are rather circumscribed in the matter of discretion in the field of injunction. The impugned order is of the type which conforms to rules of reasons and justice. See:(i) Mysore SRT Corporation v.Mirja Khasim Ali Beg, (AIR 1977 SC: 747 (paras 18 and 19) (ii) U.P. Corporation Federation Ltd. v. Sunder Bros. Delhi, (AIR 1967 SC: 249 Para 8). (iii) United Commercial Bank v. Bank of India, (AIR 1981 SC : 1426) (iv) Firm Ishardass Devi Chand & Anr v. Parkash Chand, (AIR 1969 SC: 938). 9. In the aforesaid view of the matter, interference with the impugned order is declined. There is no merit in this Appeal. Appeal is dismissed. 10. Inform Court below of this order. Send back record.